The successful class action by Port Colborne residents, Smith v. Inco, has opened the door to a similar class action against the tar sands. In Inco, nickel particles were emitted from the refinery for 80 years. There was no proof that Inco ever operated illegally or negligently, or failed to comply with its provincial permits for air emissions. Nevertheless, Justice Henderson of the Ontario Superior Court has ordered Inco to pay its former neighbours $36,000,000 in damages for lost property value, in private nuisance and under the old strict liability case, Ryland’s v. Fletcher. Operating a refinery was, he said, a “non-natural” use of land.
The same logic applies, with equal or greater force, to those downwind of Alberta’s tar sands. Hydrogen sulfide, particulates, and other air pollutants emitted by the tar sands are reported to adversely affect their neighbours as far as away as Saskatchewan. Whether or not Suncor and Syncrude are complying with provincial and/or federal permits for their emissions, these permits don’t protect them from civil liability in private nuisance and Ryland’s v. Fletcher.
Thus, those downwind of the Tar Sands now have a strong precedent for a class action against Suncor and Syncrude, at least for lost property value and similar damages. (It may be too difficult to bring health claims in a class-action; this was not permitted in the Inco case.) If Saskatchewan wheat farmers are suffering reduced yields, they may be able to bring such a claim in their home province, which may be more hospitable to the lawsuit.
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Fascinating, thanks. I had been wondering how the private law might serve a broader environmental protection purpose when heath claims continue to be frustrated by causation issues.
If a class action based on property damage was to be certified against the oil sands, it could trigger public participation in the permitting of future facilities. Currently the Alberta regulatory boards only provide intervenor standing to the "directly affected". This narrow test often requires proving a "potential" effect on property rights. A certified class action could provide evidence of potential effects. That the Inco case recognized airborne effects is crucial because the oil sands are on public lands far from population centers.